UDD2015

Background

The Complainant commenced employment with the Respondent on the 22^ndJanuary 2018 as a cleaner. The Complainant worked 20 hours a week and her hourly rate was €10.40 an hour. The Complainant’s employment ended on the 26^thMarch 2019 when she submitted her resignation by email stating that she was resigning on the grounds of constructive dismissal. Dismissal is in dispute so it is for the Complainant to establish in the first instance that a dismissal took place.

Complainant’s case

The Complainant submitted to the Court that the Respondent by their actions had left her with no alternative than to resign from her job. The Complainant did not dispute the contents of the text messages submitted to the Court. It was the Complainants evidence that although she had been instructed by the Respondent not to turn up to her place of work on her next scheduled working day she attended at that place of work. It was her evidence that she wanted to know why she would not be working there in future. It was her evidence that the decision by the Respondent to call the Guards to have her removed was an over reaction and totally inappropriate. The Complainant accepted in her evidence that she was invited to go to a meeting on that day in the Respondent’s head office to discuss the decision and to discuss work on another site. The Complainant submitted that she could not attend at the head office on that day as she had domestic commitments. In response to cross examination she confirmed that on the day in question she did not tell the Respondent that she had no way of getting to their head office or that she had commitments. The Complainant confirmed she sent an email a week later resigning from her position on the grounds of constructive dismissal. The Complainant accepted that she got an email from the Respondent the next day asking her to reconsider and providing her with a copy of their grievance procedure. The Complainant confirmed to the Court that she had by email two days later responded stating her trust and confidence in the Respondent had been shattered and that she would not reconsider her decision. The representative for the Complainant submitted that as the Complainant had lost trust and confidence in the Respondent an implied term of her contract had been breached and this was a repudiatory breach of the contract of employment. The representative went on to say that the calling of the Guards by the Respondent was conduct so unreasonable that the Complainant could not be expected to put up with it any longer and that in the circumstances it was not appropriate for the Complainant to give notice of a grievance. The case ofCederglade Limited and Tina Hliban[UD 17/15] was opened to the Court in support of those submissions by the Complainant’s representative.

Respondent’s case

It is the Respondent’s submission that the Complainant’s contract specifically states that she can be required to work at any of the Respondent’s client’s sites. The Respondent received a request at short notice from the client whose site the Complainant worked on that somebody else be assigned to the site as they longer wanted the Complainant working on their site.

The Respondent informed the Complainant by text that she was not to attend that site on her next scheduled work day and sought to engage with her by phone but were unable to make contact to advise her that they were looking at alternative sites and that she would continue to be paid. The Respondent accepted the text messages submitted were an accurate reflection of the interactions that had taken place. When the Complainant turned up for work, she was advised to leave the site as she did not have permission to be there. The Complainant refused to leave and indicated it was her intention to stay on the site for her normal rostered hours. The Complainant was advised that if she did not leave, she would be trespassing and that the Guards would be called. In the end the Guards were called, and she left. During this time, she was invited to attend the Respondent’s head office to discuss the decision to remove her from the site and to look at alternative sites, but she declined to attend. At no time did she indicate that the reason she would not attend was because she had no transport and or that she had a domestic commitment she needed to fulfil. The Complainant was given an opportunity to withdraw her resignation, but she declined to do so. It is the Respondent’s submission that the Complainant resigned and that she has not met the burden of proof required to establish constructive dismissal. In support of that submission the Respondent opened to the Court the case of Mc Cormack v Dunnes Stores UD14 21/2008 in particular the following paragraph: “the notion places a high burden of proof on the employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures or otherwise in an attempt to resolve her grievance with his/her employer. The employee would need to demonstrate the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The applicable law

Section 1 of the Act defines constructive dismissal in the following manner

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,”

Section 6(1) of the Act states

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Issues for the Court

As dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act.
Section 1of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed. This is, often referred to as the “contract test”. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test”
an employer must be“guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”as held
Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so he is justified in leaving. It is this latter reasonableness test that is relied upon by the complainant.

Discussion

The question that arises for decision in this case is whether, it was reasonable for the Complainant to terminate her employment because of the Respondent’s conduct. The Complainant submitted that the action of the Respondent in calling the Guards was totally unreasonable and her representative submitted that this met the ‘reasonableness’ test. However, the Complainant accepted in her evidence that the text messages showed that she had encouraged the Respondent to call the Guards. It is not clear to the Court how in those circumstances she can then seek to rely on the calling of the Guards as being unreasonable conduct. The Complainant went on to say that she had lost all trust and confidence in the Respondent which her representative submitted was a repudiatory breach of her contract. The Complainant confirmed that this loss of trust arose from the fact that she had not been told why she was being moved from the site. However, the Complainant did not dispute that on the day she turned up at her old place of work she was invited to attend a meeting at the Respondent’s head office to discuss the reason for the decision to move her and to look at alternative work. It was also accepted by the Complainant that her contract allowed for her to be assigned to a different site. In circumstances where the Respondent offered to meet with the Complainant and explain what had happened and her contract allowed for her to be assigned to different sites it is not clear to the Court how this is a repudiatory breach of her contract.
Findings of the Court.

In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning

While there can be exceptions to this, in the instant case, the Court is not satisfied that there were factors present which might excuse the Complainant’s failure to formally complain to the Respondent before resigning. The Respondent had a grievance procedure in place and the Complainant was aware of its existence.

On the facts of this case the Court cannot see how it could realistically be said that the Respondent was guilty of conduct in relation to the Complainant which was such as to entitle her to terminate her employment without having sought to ventilate and resolve whatever grievance that she had through the internal procedures. The fact that she failed to do so negates any possible basis upon which her subsequent decision to resign could be regarded as a reasonable response to the situation then pertaining particularly in circumstances where she was given the opportunity to withdraw her resignation.

Determination

In all the circumstances, the Court cannot find that the Respondent’s conduct was unreasonable or could justify the Complainant’s terminating her employment by way of constructive dismissal nor was such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of her contract of employment. Accordingly, the Court must hold that the Complainant’s employment did not come to an end by dismissal.

The Court determines that the Complainant’s complaint is not well founded. The appeal is rejected. The decision of the Adjudication Officer is affirmed.

The Court so Determines.



Signed on behalf of the Labour Court



Louise O'Donnell
MK______________________
17 February 2020Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.